Topic 5 - Adviser & Client Relationship Flashcards
What is the definition of a vulnerable client?
FCA Definition - Someone who, due to their personal circumstances, is especially susceptible to detriment, particularly when a firm is not acting with appropriate levels of care.
May be vulnerable for wide range of reasons including physical, mental disability, poor health or weak numeracy, literacy skills.
What is the definition of Legal Capacity and what does it mean if there is no capacity?
Legal Capacity - Persons power in law to do certian things such as entering contracts.
If no legal capacity then contract is normally void i.e it never existed or voidable i.e it remains in force unless declared void by on of the contracting parties.
Key factors around Decision Making and capacity
Must know who client is, who they should accept instructions from and who duty of care is to.
Must ensure third party documents been properly executed and cover transactions involved as well as limitations or restrictions on authority.
Most arrangements in later life and around care planning require capacity such as POA, Wills, Gifts, LTC Policies etc.
Capacity is not always constant and easy to determine.
Mental Capacity Act 2005 clarifies areas of previous uncertain. Includes single test for capacity and principles to follow:
- Person hold capacity unless proven otherwise
- An unwise decision doesn’t mean lack of capacity
How can decision making be substituted?
Powers of Attorney Act 1971 and the Mental Capacity Act (England and Wales) 2005.
POA is mechanism allowing donor to give or delegate power to act on their behalf
Used if travelling for long periods or poor health.
Only given by someone with capacity to do so
Automatically revoked if donor dies, revokes PoA or becomes bankrupt.
What types of PoA are there?
Introduced in 1986 from EPA Act. Provides for powers that continue when donor has been certified mentally incapable so covers future dealings of affairs. Was replaced by LPAs from 2007.
Must be registered with Court of Protection once capacity is lost before attorney can act.
LPAs are similar to EPAs but can be arranged in two parts:
- Health and Welfare - Decisions about personal health care and welfare but only used after person has lost capacity. Unlike EPA.
- Property and Financial Affairs - Decisions on property and personal affairs. Similar to EPA.
Large transactions or decisions will normally require pre approval from court.
Mental Capacity Act 2005
What key areas does this act make provisions for relating to capacity and care?
In force from April 2007. Covers assessment of capacity and carers of those who lack it.
Assessing capacity – If unable to make decision due to impariment or disturbsnce in mind/brain.
Best interests – Non-exhaustive checklist of factors decision-makers to work through to ensure this
Actions in care - Protection from liability if person is acting relating to care of someone lacking capacity i.e medical treatment even if non consenting.
Advance decisions - Treatment refused in advance if capacity is lacked in future.
What safeguards did the Mental Capacity Act 2005 introduce?
Court of Protection - Makes decisions on financial or welfare matters. Power to declare someone lacks capacity, make orders or appoint deputies to act.
Public Guardian - Duties include registering LPAs & Deputies. Provides protection under the Office of the Public Guardian.
Independent Mental Capacity Advocate (IMCA) – Someone appointed to support person without capacity but has no one to represent them. Normally relates to serious medical treatement, change to accommodation if provided by NHS/Local Authority.
Research - Guidelines for research involving those without capacity such as being approved by appropriate body.
New criminal offences – Ill-treatment or wilful neglect of person without capacity carries sentance of up to 5 years.
What is a Deputy?
What are the circumstances where a deputy will normally be appointed?
Guidance, assistance and supervision provided to those appointed as Deupties by OPG.
Deupties normally appointed if person has more than £10k in cash after debt, property that has to be sold or level of income that merits an appointment.
Supervision is either minimal if assets less than £21k or more general. Reporting requirements will depend on level of supervision.
Give a brief definition of what GDPR covers?
GDPR applies to personal data. Information of an individual who can be identified, i.e name, id number, location or online identifier. Overseen by ICO.
What are the 7 Data Protection Principles?
- Processed Lawfully, fairly & transparently - I.e tell person what information, why and disclosure to other parties.
- Collected for specified, explicit & legitimate purposes.
- Data collected adequate, relevant and limited to what’s necessary for purpose.
- Accurate and up to date - Inaccurate data erased or rectified without delay.
- Kept in form that identifies individuals no longer than necessary.
- Processed to ensure appropriate security against unauthorised/unlawful processing, loss, descruction or damage. Such as passwords, encryption.
- Robust procedures to ensure compliance with legislation. Data controller responsible and must be able to demonstrate compliance with rules.
What are the 6 Lawful Bases of Processing Data?
- Consent: Clear consent for data to be processed.
- Contract: Processing is necessary for the contract between processor and individual.
- Legal obligation: the processing is necessary for the processor to comply with the law and contract
- Vital interests: the processing is necessary to protect someone’s life.
- Public task: the processing is necessary for public interest or official function
- Legitimate interests: processing necessary for processor’s/3rd party legitimate interests
What data rights does an indivdiual have under the new GDPR legislation?
- Right to be informed about collection and use of their data
- Right to access data through Subject Access Request but can be charged fee.
- Right to rectification is data is inaccurate or incomplete
- Right to erasure ‘right to be forgotten’ either verbally or in writing.
- Right to restrict processing. The data can be stored but not used.
- Right to data portability. Can obtain and reuse their data for their own purposes.
- Right to object against processing of data such as direct marketing.
- Rights in relation to automated decision-making and profiling.
